Senate rejects flag-burning ban by one vote

WASHINGTON – A constitutional amendment to ban flag desecration died in a cliffhanger vote in the Senate today, one week before Independence Day, one vote short of the support needed to send it to the states for ratification.

The 66-34 vote in favor of the amendment was a single vote short of the two-thirds required. The House surpassed that threshold last year, 286-130.

The proposed amendment, sponsored by Sen. Orrin Hatch, R-Utah, read: "The Congress shall have power to prohibit the physical desecration of the flag of the United States."

It represented Congress' response to Supreme Court rulings in 1989 and 1990 that burning and other desecrations of the flag are protected as free speech by the First Amendment to the Constitution.

Republicans scheduled the vote exactly one week before Independence Day and a little more than four months before voters go to the polls to elect a new Congress.

Democrats put forth an alternate. Sponsored by their party's assistant leader in the Senate, Dick Durbin of Illinois, it included much of the proposed amendment's language and would make it against the law to damage an American flag on federal land if the intent was a breach of the peace or intimidation of other people. It also would prohibit unapproved demonstrations at military funerals.

The proposed constitutional amendment fell four votes short of the 67, or two-thirds majority needed, the last time the Senate voted on it, in 2000.

The Senate's scheduled vote represented the best chance in 15 years that the amendment could achieve the two-thirds majority required, 67 votes if all 100 members were present and voting.

Had the amendment passed, 38 states would then have had to ratify it before the measure could become the nation's 28th constitutional amendment.

"The flag represents our right and our freedom for free speech as well as all of our other freedoms," Sen. Craig Thomas, R-Wyo., said in Senate debate Tuesday. "It should receive special protection."

Opponents said the amendment violates the First Amendment right to free speech. Some Democrats complained that majority Republicans were exploiting people's patriotism for political advantage in the midterm elections.

"Our country's unique because our dissidents have a voice," said Sen. Daniel Inouye, D-Hawaii, a World War II veteran who lost an arm in the war and was decorated with the Medal of Honor.

"While I take offense at disrespect to the flag," he said, "I nonetheless believe it is my continued duty as a veteran, as an American citizen, and as a United States senator to defend the constitutional right of protesters to use the flag in nonviolent speech."

As an alternative, Sen. Dick Durbin, D-Ill., offered a bill that would prohibit damaging the flag on federal land by someone intending a breach of the peace or intimidation of another person. Durbin's bill also would prohibit unapproved demonstrations at military funerals.

The last proposed constitutional amendment that Congress sent to the states for ratification was the Equal Rights Amendment in 1972. The normal seven-year deadline for state ratification was extended to 1982, but the ERA couldn't muster the approval of more than 35 state legislatures, three short of the three-fourths of states required under the Constitution.

The 26th Amendment, guaranteeing 18-year-olds the right to vote, was approved by Congress in March 1971 and was ratified by the states less than four months later.

The 27th Amendment, ratified in 1992, was first proposed in 1789. It says pay raises that Congress votes for itself can't take effect until after the next election for members of the House.

The House also got into the July Fourth spirit Tuesday by passing on a voice vote a measure that would bar condominium and homeowner associations from restricting how the flag can be displayed.

Sponsored by Rep. Roscoe Bartlett, R-Md., the resolution would prohibit those groups from preventing residents from displaying an American flag on their own property. The Senate is considering whether to bring up the measure this year.